Exhibit 10.55
STANDARD
FORM
INDUSTRIAL BUILDING
LEASE
(SINGLE-TENANT)
1.
BASIC
TERMS . This Section 1 contains the
Basic Terms of this lease (this “ Lease ”) between
Landlord and Tenant, named below. Other Sections of the
Lease referred to in this Section 1 explain and
define the Basic Terms and are to be read in conjunction with the
Basic Terms.
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1.1.
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Effective
Date of Lease: March 14, 2008
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1.2.
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Landlord: FR
York Property Holding, LP, a Delaware limited
partnership
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1.3.
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Tenant: United
Natural Foods, Inc.
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1.4.
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Premises: A
building commonly known as 225 Cross Farm Lane, York, Pennsylvania,
and containing approximately 675,000 rentable square feet, as
legally described on Exhibit A attached
hereto.
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1.5.
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Lease
Term: Twelve (12) years (“ Term ”)
commencing June 1, 2008 (“ Commencement Date
”) and ending, subject to Section 2.3 below, on
May 31, 2020 (“ Expiration Date
”).
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1.6.
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Permitted
Uses: (See Section 4.1 )
Warehousing, distribution and any other use not prohibited by
applicable zoning laws or regulations and approved in writing by
Landlord, which shall not be unreasonably withheld, conditioned or
delayed
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1.7.
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Tenant’s
Guarantor: None
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1.8.
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Brokers: (See
Section 23
; if none, so state): (A) Tenant’s
Broker: NAI Brannen Goddard ; and
(B) Landlord’s Broker: CB Richard
Ellis
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1.9.
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Security/Damage
Deposit: None
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1.10.
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Exhibits
to Lease: The following exhibits are attached to and
made a part of this Lease. (If none, so state): A (legal
description); B (Tenant Operations Inquiry Form); C (Tenant
Improvements), D (Confirmation of Commencement Date); E (Broom
Clean Condition and Repair Requirements); Exhibit F (Signage Plan);
Addendum 1 (Renewal Option); and Addendum 2 (Purchase
Option)
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2.
LEASE
OF PREMISES; RENT .
2.1.
Lease
of Premises for Lease Term . Landlord hereby
leases the Premises to Tenant, and Tenant hereby rents the Premises
from Landlord, for the Term and subject to the conditions of this
Lease.
2.2.
Types
of Rental Payments . Tenant shall pay net base rent to
Landlord in monthly installments, in advance, on the first day of
each and every calendar month during the Term of this Lease (the
“ Base
Rent ”) in the amounts and for the periods as set
forth below:
Rental Payments
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Lease
Period
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Annual
Base Rent
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Monthly
Base Rent
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____,
2008 – May 31, 2008
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$0.00
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$0.00
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June
1, 2008 – May 31, 2009
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$2,558,250.00
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$231,187.50
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June
1, 2009 – May 31, 2010
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$2,619,000.00
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$218,250.00
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June
1, 2010 – May 31, 2011
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$2,666,250.00
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$222,187.50
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June
1, 2011 – May 31, 2012
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$2,754,000.00
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$229,500.00
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June
1, 2012 – May 31, 2013
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$2,821,500.00
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$235,125.00
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June
1, 2013 – May 31, 2014
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$2,889,000.00
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$240,750.00
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June
1, 2014 – May 31, 2015
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$2,963,250.00
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$246,937.50
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June
1, 2015 – May 31, 2016
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$3,037,500.00
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$253,125.00
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June
1, 2016 – May 31, 2017
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$3,111,750.00
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$259,312.50
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June
1, 2017 – May 31, 2018
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$3,192,750.00
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$266,062.50
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June
1, 2018 – May 31, 2019
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$3,273,750.00
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$272,812.50
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June
1, 2019 – May 31, 2020
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$3,354,750.00
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$279,562.50
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Tenant
shall also pay all Operating Expenses (defined below) and any
other amounts owed by Tenant hereunder (collectively,
“Additional
Rent” ). In the event any monthly
installment of Base Rent or Additional Rent, or both, is not
paid within 5 days of the date when due, a late charge in an
amount equal to 5% of the then delinquent installment of Base
Rent and/or Additional Rent (the “ Late Charge
”; the Late Charge, Default Interest, as defined in
Section
22.3 below, Base Rent and Additional Rent shall
collectively be referred to as “ Rent ”),
shall be paid by Tenant to Landlord, c/o First Industrial
Investment, Inc., 75 Remittance Drive Suite 1066, Chicago IL
60675-1066, or if sent by overnight courier, The Northern
Trust Company, 350 North Orleans, 8 th
Floor Receipt & Dispatch, Chicago IL 60654,
Attention: FIDS Suite 1066 (or such other entity
designated as Landlord’s management agent, if any, and
if Landlord so appoints such a management agent, the “
Agent
”), or pursuant to such other directions as Landlord
shall designate in this Lease or otherwise in
writing. Notwithstanding the foregoing, for the
first three (3) monthly installments of Rent during the Term,
the Late Charge will not be charged to Tenant until five (5)
days after notice by Landlord to Tenant of any such delinquent
installment of Base Rent and/or Additional Rent
2.3.
Covenants
Concerning Rental Payments; Initial and Final Rent Payments
. Tenant shall pay the Rent promptly when due, without
notice or demand, and without any abatement, deduction or
setoff. No payment by Tenant, or receipt or acceptance
by Agent or Landlord, of a lesser amount than the correct Rent
shall be deemed to be other than a payment on account, nor shall
any endorsement or statement on any check or letter accompanying
any payment be deemed an accord or satisfaction, and Agent or
Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to
Landlord. If the Commencement Date occurs on a day other
than the first day of a calendar month, the Rent due for the first
calendar month of the Term shall be prorated on a per diem basis
(based on a 360 day, 12 month year) and paid to Landlord on the
Commencement Date, and the Term will be extended to terminate on
the last day of the calendar month in which the Expiration Date
stated in Section
1.5 occurs.
2.4.
Net
Lease . This is an absolutely net lease to
Landlord. It is the intent of the parties hereto that
the Base Rent payable under this Lease shall be an absolutely net
return to Landlord and that Tenant shall pay all costs and expenses
relating to the ownership and operation of the Premises and the
business carried on therein, unless otherwise expressly provided to
the contrary in this Lease. Any amount or obligation
relating to the Premises that is not expressly declared (under this
Lease) to be that of Landlord shall be deemed to be an obligation
of Tenant to be performed by Tenant, at Tenant’s
expense. It is the intention of the parties hereto that
the obligations of Tenant hereunder shall be separate and
independent covenants and agreements, that the Base Rent and the
Additional Rent shall continue to be payable in all events, and
that the obligations of Tenant hereunder shall continue unaffected
in all events, unless the requirement to pay or perform the same
shall have been specifically terminated pursuant to an express
provision of this Lease.
3.
OPERATING
EXPENSES .
3.1.
Definitional
Terms Relating to Additional Rent . For purposes
of this Section and other relevant provisions of the
Lease:
3.1.1.
Operating
Expenses . The term “ Operating Expenses
” shall mean all costs and expenses paid or incurred by
Landlord with respect to, or in connection with, the ownership,
repair, restoration, maintenance and operation of the
Premises. Operating Expenses may include, but are not
limited to, any or all of the following: (i) all
market-based premiums for commercial property, casualty, general
liability, boiler, flood, earthquake, terrorism and all other types
of insurance provided by Landlord and relating to the Premises, and
all deductibles paid by Landlord pursuant to insurance policies
required to be maintained by Landlord under this Lease; (ii)
management fees to Landlord or Agent in an amount not to exceed 2%
per annum of all Rent due hereunder; (iii) Taxes, as hereinafter
defined in Section
3.1.2 (subject, however, to the last sentence of
Section
3.1.2 ); (iv) dues, fees or other costs and expenses, of any
nature, due and payable to any association or comparable entity to
which Landlord, as owner of the Premises, is a member or otherwise
belongs and that governs or controls any aspect of the ownership
and operation of the Premises; (v) all fees in incurred in
connection with the lawn care and landscaping of the Premises; and
(vi) any real estate taxes and common area maintenance expenses
levied against, or attributable to, the Premises under any
declaration of covenants, conditions and restrictions, reciprocal
easement agreement or comparable arrangement that encumbers and
benefits the Premises and other real property (e.g. a business
park).
3.1.2.
Taxes
. The term “ Taxes ,” as
referred to in Section 3.1.1(iii)
above shall mean (i) all governmental taxes, assessments, fees and
charges of every kind or nature (other than Landlord’s income
taxes), whether general, special, ordinary or extraordinary, due at
any time or from time to time, during the Term and any extensions
thereof, in connection with the ownership, leasing, or operation of
the Premises, or of the personal property and equipment located
therein or used in connection therewith; and (ii) any reasonable
expenses incurred by Landlord in contesting such taxes or
assessments and/or the assessed value of the
Premises. For purposes hereof, Tenant shall be
responsible for any Taxes that are due and payable at any time or
from time to time during the Term and for any Taxes that are
assessed, become a lien, or accrue during any Operating Year, which
obligation shall survive the termination or expiration of this
Lease. If Landlord so elects, by delivery of written
notice to Tenant at any time during the Term, Tenant shall pay the
Taxes directly to the taxing authority(ies), rather than to
Landlord for payment to the taxing authority(ies), whereupon Tenant
shall be required to pay all Taxes prior to the date on which they
become delinquent and Tenant shall deliver to Landlord, promptly
after Tenant’s payment of same, reasonable evidence of such
payments.
3.1.3.
Operating
Year . The term “ Operating Year ”
shall mean the calendar year commencing January 1st of each year
(including the calendar year within which the Commencement Date
occurs) during the Term.
3.2.
Payment
of Operating Expenses . Tenant shall pay, as
Additional Rent and in accordance with the requirements of
Section 3.3
, all of the Operating Expenses, as set forth in Section 3.3 .
Additional Rent commences to accrue upon the Commencement
Date. The Operating Expenses payable hereunder for the
Operating Years in which the Term begins and ends shall be prorated
to correspond to that portion of said Operating Years occurring
within the Term. The Operating Expenses and any other
sums due and payable under this Lease shall be adjusted upon
receipt of the actual bills therefor, and the obligations of this
Section 3 shall
survive the termination or expiration of the Lease.
3.3.
Payment
of Additional Rent . Landlord shall have the
right to reasonably estimate the Operating Expenses for each
Operating Year. Upon Landlord’s or Agent’s
notice to Tenant of such estimated amount, Tenant shall pay, on the
first day of each month during that Operating Year, an amount (the
“ Estimated
Additional Rent ”) equal to the estimate of the
Operating Expenses divided by 12 (or the fractional portion of the
Operating Year remaining at the time Landlord delivers its notice
of the estimated amounts due from Tenant for that Operating
Year). If the aggregate amount of Estimated Additional
Rent actually paid by Tenant during any Operating Year is less than
Tenant’s actual ultimate liability for Operating Expenses for
that particular Operating Year, Tenant shall pay the deficiency
within thirty (30) days of Landlord’s written demand
therefor. If the aggregate amount of Estimated
Additional Rent actually paid by Tenant during a given Operating
Year exceeds Tenant’s actual liability for such Operating
Year, the excess shall be credited against the Estimated Additional
Rent next due from Tenant during the immediately subsequent
Operating Year, except that in the event that such excess is paid
by Tenant during the final Lease Year, then upon the expiration of
the Term, Landlord or Agent shall pay Tenant the then-applicable
excess promptly after determination thereof.
3.4.
Audit
. As soon as is reasonably practical after each
Operating Year, Landlord shall provide Tenant with a statement (a
“ Statement ”)
setting forth the actual ultimate Additional Rent for the subject
Operating Year. If Tenant disputes the amount set forth
in a given Statement, Tenant shall have the right, at Tenant's sole
expense, to cause Landlord's books and records
with
respect to the particular Operating Year that is the subject
of that particular Statement to be audited (the “
Audit
”) by a certified public accountant mutually acceptable
to Landlord and Tenant (the “ Accountant
”), provided Tenant (i) has not defaulted under this
Lease and failed to cure such default on a timely basis and
(ii) delivers written notice (an “
Audit
Notice ”) to Landlord on or prior to the date
that is thirty (30) days after Landlord delivers the Statement
in question to Tenant (such 30-day period, the “
Response
Period ”). If Tenant fails to timely
deliver an Audit Notice with respect to a given Statement,
then Tenant's right to undertake an Audit with respect to that
Statement and the Operating Year to which that particular
Statement relates shall automatically and irrevocably be
waived and such Statement shall be final and binding upon
Tenant and shall, as between the parties, be conclusively
deemed correct. If Tenant timely delivers an Audit
Notice, Tenant must commence such Audit within thirty (30)
days after the Audit Notice is delivered to Landlord, and the
Audit must be completed within thirty (30) days of the date on
which it is begun. If Tenant fails, for any reason
other than Landlord’s lack of cooperation, to commence
and complete the Audit within such periods, the Statement that
Tenant elected to Audit shall be deemed final and binding upon
Tenant and shall, as between the parties, be conclusively
deemed correct. The Audit shall take place at the
offices of Landlord where its books and records are located,
at a mutually convenient time during Landlord's regular
business hours. Before conducting the Audit, Tenant
must pay the full amount of the Additional Rent billed under
the Statement then in question. Tenant hereby
covenants and agrees that the Accountant engaged by Tenant to
conduct the Audit shall be compensated on an hourly basis and
shall not be compensated based upon a percentage of
overcharges it discovers. If an Audit is conducted
in a timely manner, such Audit shall be deemed final and
binding upon Landlord and Tenant and shall, as between the
parties, be conclusively deemed correct. If the
results of the Audit reveal that the actual ultimate
Additional Rent does not equal the aggregate amount of the
estimated Additional Rent actually paid by Tenant to Landlord
during the Operating Year that is the subject of the Audit,
the appropriate adjustment shall be made between Landlord and
Tenant, and any payment required to be made by Landlord or
Tenant to the other shall be made within thirty (30) days
after the Accountant’s determination. In no
event shall this Lease be terminable nor shall Landlord be
liable for damages based upon any disagreement regarding an
adjustment of the Additional Rent. Tenant agrees that the
results of any Audit shall be kept strictly confidential by
Tenant and shall not be disclosed to any other person or
entity.
4.
USE
OF PREMISES; SIGNAGE; SECURITY DEPOSIT .
4.1.
Use
of Premises . The Premises shall be used by the
Tenant for the purpose(s) set forth in Section 1.6 above and
for no other purpose whatsoever. Except as expressly
permitted by this Lease, Tenant shall not, at any time, use or
occupy, or suffer or permit anyone to use or occupy, the Premises,
or do or permit anything to be done in the Premises, in any manner
that may (a) violate any Certificate of Occupancy for the Premises;
(b) cause, or be liable to cause, injury to, or in any way impair
the value or proper utilization of, all or any portion of the
Premises (including, but not limited to, the structural elements of
the Premises) or any equipment, facilities or systems therein; (c)
constitute a violation of the laws and requirements of any public
authority or the requirements of insurance bodies or the rules and
regulations of the Premises, including any covenant, condition or
restriction affecting the Premises; (d) exceed the load bearing
capacity of the floor of the Premises; or (e) impair or tend to
impair the character, reputation or appearance of the Premises as a
commercial warehouse. On or prior to the date hereof,
Tenant has completed and delivered for the benefit of Landlord a
“Tenant Operations Inquiry Form” in the form attached
hereto as Exhibit
B describing the nature of Tenant’s proposed business
operations at the Premises, which form is intended to be, and shall
be, relied upon by Landlord. From time to time during
the Term (but no more often than once in any twelve month period
unless Tenant is in default hereunder or unless Tenant assigns this
Lease or subleases all or any portion of the Premises, whether or
not in accordance with Section 8) , Tenant
shall provide an updated and current Tenant Operations Inquiry Form
upon Landlord’s request.
4.2.
Signage
. Tenant shall not affix any sign of any size or
character to any portion of the Premises, without prior written
approval of Landlord, which approval shall not be unreasonably
withheld or delayed. Tenant shall remove all signs of
Tenant upon the expiration or earlier termination of this Lease and
immediately repair any damage to the Premises caused by, or
resulting from, such removal. Notwithstanding the foregoing, Tenant
may install a sign at the Premises, at Tenant’s sole cost, in
accordance with the signage plan attached hereto as Exhibit
F .
4.3.
Intentionally
omitted .
5.
CONDITION
AND DELIVERY OF PREMISES .
5.1.
Condition
of Premises . Subject to the last sentence of
Section
9.1 ,
Tenant agrees that Tenant is familiar with the condition of the
Premises, and Tenant hereby accepts the foregoing on an
“AS-IS,” “WHERE-IS”
basis. Tenant acknowledges that neither Landlord nor
Agent, nor any representative of Landlord, has made any
representation as to the condition of the foregoing or the
suitability of the foregoing for Tenant’s intended
use. Tenant represents and warrants that Tenant has made
its own inspection of the foregoing. Neither Landlord
nor Agent shall be obligated to make any repairs, replacements or
improvements
(whether
structural or otherwise) of any kind or nature to the
foregoing in connection with, or in consideration of, this
Lease. Tenant shall construct and install the
tenant improvements (“ Tenant
Improvements ”), at Tenant’s sole cost and
expense, pursuant to the terms and conditions of Exhibit C .
Further, any documents that Landlord provided to Tenant prior
to the execution of this Lease were furnished to Tenant for
information purposes only and without any representation or
warranty Landlord with respect thereto, express or implied.
The floor capacity of the Premises is 500 pound per square
foot live load capacity.
5.2.
Delay
in Commencement .
5.3.
Memorandum
of Commencement Date . Upon lease execution, and
as a condition precedent to such delivery, of the Premises to
Tenant, and Tenant shall deliver to Landlord a Confirmation of
Commencement Date in substantially the form attached hereto as
Exhibit D
.
6.
SUBORDINATION;
ESTOPPEL CERTIFICATES; ATTORNMENT .
6.1.
Subordination
and Attornment . This Lease is and shall be
subject and subordinate at all times to (a) all ground leases or
underlying leases that may now exist or hereafter be executed
affecting the Premises and (b) any mortgage or deed of trust that
may now exist or hereafter be placed upon, and encumber, any or all
of (x) the Premises; (y) any ground leases or underlying leases for
the benefit of the Premises; and (z) all or any portion of
Landlord’s interest or estate in any of said
items. Tenant shall execute and deliver, within ten (10)
days of receipt thereof, and in the form reasonably requested by
Landlord (or its lender), any documents evidencing the
subordination of this Lease. Tenant hereby covenants and
agrees that Tenant shall attorn to any successor to
Landlord.
6.2.
Estoppel
Certificate . Tenant agrees, from time to time
and within ten (10) days after request by Landlord, to deliver to
Landlord, or Landlord’s designee, an estoppel certificate
stating such matters pertaining to this Lease as may be reasonably
requested by Landlord, so long as such estoppel accurately
describes the terms of this Lease. Failure by Tenant to
timely execute and deliver such certificate shall constitute a
Default, as defined below (without any obligation to provide any
notice thereof or any opportunity to cure such failure to timely
perform).
6.3.
Transfer
by Landlord . In the event of a sale or conveyance by
Landlord of the Premises, the same shall operate to release
Landlord from any future liability for any of the covenants or
conditions, express or implied, herein contained in favor of Tenant
and first arising or accruing after the effective date of
Landlord’s transfer of its interest in the Premises, and in
such event Tenant agrees to look solely to Landlord’s
successor in interest (“ Successor Landlord
”) with respect thereto and agrees to attorn to such
successor.
7.
QUIET
ENJOYMENT . Subject to the provisions of this
Lease, so long as Tenant pays all of the Rent and performs all of
its other obligations hereunder, Tenant shall not be disturbed in
its possession of the Premises by Landlord, Agent or any other
person lawfully claiming through or under Landlord.
8.
ASSIGNMENT
AND SUBLETTING . Tenant shall not (a) assign
(whether directly or indirectly), in whole or in part, this Lease,
or (b) allow this Lease to be assigned, in whole or in part, by
operation of law or otherwise, including, without limitation, by
transfer of a controlling interest ( i.e. greater
than a 50% interest) of stock, membership interests or partnership
interests, or by merger or dissolution, which transfer of a
controlling interest, merger or dissolution shall be deemed an
assignment for purposes of this Lease, or (c) mortgage or pledge
the Lease, or (d) sublet the Premises, in whole or in part, without
(in the case of any or all of (a) through (d) above) the prior
written consent of Landlord, which consent shall not be
unreasonably withheld or delayed; provided, however, subsection (b)
shall not apply as long as Tenant is a publicly traded company
(i.e. Tenant’s stock is listed on the Nasdaq or similar stock
exchange). Tenant may, however, assign this Lease or
sublease a portion of the Premises to a wholly-owned subsidiary,
provided that Tenant advises Landlord, in writing, in advance, and
otherwise complies with the succeeding provisions of this
Section 8
. In no event shall any assignment or sublease ever
release Tenant or any guarantor from any obligation or liability
hereunder; and in the case of any assignment, Landlord shall retain
all rights with respect to the Security. Any purported
assignment, mortgage, transfer, pledge or sublease made without the
prior written consent of Landlord shall be absolutely null and
void. No assignment of this Lease shall be effective and
valid unless and until the assignee executes and delivers to
Landlord any and all documentation reasonably required by Landlord
in order to evidence assignee’s assumption of all obligations
of Tenant hereunder. Regardless of whether or not an
assignee or sublessee executes and delivers any documentation to
Landlord pursuant to the preceding sentence, any assignee or
sublessee shall be deemed to have automatically attorned to
Landlord in the event of any termination of this
Lease. If this Lease is assigned, or if the Premises (or
any part thereof) are sublet or used or occupied by anyone other
than Tenant, whether or not in violation of this Lease, Landlord or
Agent may (without prejudice to, or waiver of its rights), collect
Rent from the assignee, subtenant
or
occupant. In the event of an assignment of this
Lease and the payment of consideration from the assignee to
the Tenant in connection therewith, 50% of such consideration
(after deducting Tenant’s actual cost of such assignment
or subletting) shall be paid to Landlord. With
respect to the allocable portion of the Premises sublet, in
the event that the total rent and any other considerations
received under any sublease by Tenant is greater than (on a
pro rata and proportionate basis) the total Rent required to
be paid, from time to time, under this Lease, Tenant shall pay
to Landlord fifty percent (50%) of such excess as received
from any subtenant and such amount shall be deemed a component
of the Additional Rent.
9.
COMPLIANCE
WITH LAWS .
9.1.
Compliance
with Laws . Tenant shall, at its sole expense
(regardless of the cost thereof), comply with all local, state and
federal laws, rules, regulations and requirements now or hereafter
in force and all judicial and administrative decisions in
connection with the enforcement thereof (collectively, “
Laws
”), whether such Laws (a) pertain to either or both of the
Premises and Tenant’s use and occupancy thereof; (b) concern
or address matters of an environmental nature; (c) require the
making of any structural, unforeseen or extraordinary changes; and
(d) involve a change of policy on the part of the body enacting the
same, including, in all instances described in (a) through (d), but
not limited to, the Americans With Disabilities Act of 1990 (42
U.S.C. Section 12101 et seq
.). If any license or permit is required for the conduct
of Tenant’s business in the Premises, Tenant, at its expense,
shall procure such license prior to the Commencement Date, and
shall maintain such license or permit in good standing throughout
the Term. Tenant and Landlord shall give prompt notice
to the other party of any written notice it receives of the alleged
violation of any Law or requirement of any governmental or
administrative authority with respect to either or both of the
Premises and the use or occupation thereof. Landlord warrants
that, as of the date that Landlord executes this Lease, to
Landlord’s knowledge, Landlord has not received any notice
indicating either the Building or the Premises is/are in violation
of any Law or restrictive covenant affecting the Building and the
Premises. As used herein, “Landlord’s
knowledge” or words of similar import shall refer only to the
actual (as opposed to deemed, imputed or constructive) knowledge of
Jeffrey Thomas and Max Wilder without inquiry and, notwithstanding
any fact or circumstance to the contrary, shall not be construed to
refer to the knowledge of any other person or entity.
Notwithstanding the foregoing, Landlord shall be obligated to
repair and violations of any Laws that existed prior to the
Effective Date of the Lease and was not a result of the Tenant
Improvements or otherwise caused by Tenant or any Tenant Parties,
provided that Tenant must provide written notice to Landlord of any
such violation prior to December 31, 2008.
9.2.
Hazardous
Materials . If, at any time or from time to time
during the Term (or any extension thereof), any Hazardous Material
(defined below) is generated, transported, stored, used, treated or
disposed of at, to, from, on or in the Premises by, or as a result
of any act or omission of, any or all of Tenant and any or all of
Tenant Parties (defined below): (i) Tenant shall, at its own cost,
at all times comply (and cause all others to comply) with all Laws
relating to Hazardous Materials, and Tenant shall further, at its
own cost, obtain and maintain in full force and effect at all times
all permits and other approvals required in connection therewith;
(ii) Tenant shall promptly provide Landlord or Agent with complete
copies of all communications, permits or agreements with, from or
issued by any governmental authority or agency (federal, state or
local) or any private entity relating in any way to the presence,
release, threat of release, or placement of Hazardous Materials on
or in the Premises or any portion of the Premises, or the
generation, transportation, storage, use, treatment, or disposal
at, on, in or from the Premises, of any Hazardous Materials; (iii)
Landlord, Agent and their respective agents and employees shall
have the right to either or both (x) enter the Premises and (y)
conduct appropriate tests, at Tenant’s expense, for the
purposes of ascertaining Tenant’s compliance with all
applicable Laws or permits relating in any way to the generation,
transport, storage, use, treatment, disposal or presence of
Hazardous Materials on, at, in or from all or any portion of the
Premises; and (iv) upon written request by Landlord or Agent,
Tenant shall cause to be performed, and shall provide Landlord with
the results of reasonably appropriate tests of air, water or soil
to demonstrate that Tenant complies with all applicable Laws or
permits relating in any way to the generation, transport, storage,
use, treatment, disposal or presence of Hazardous Materials on, at,
in or from all or any portion of the Premises. This
Section 9.2
does not authorize the generation, transportation, storage, use,
treatment or disposal of any Hazardous Materials at, to, from, on
or in the Premises in contravention of this Section 9
. Tenant covenants to investigate, clean up and
otherwise remediate, at Tenant’s sole expense, any release of
Hazardous Materials caused, contributed to, or created by any or
all of (A) Tenant and (B) any or all of Tenant’s officers,
directors, members, managers, partners, invitees, agents,
employees, contractors or representatives (collectively, “
Tenant
Parties ”) during the Term. Such
investigation and remediation shall be performed only after Tenant
has obtained Landlord’s prior written consent; provided,
however, that Tenant shall be entitled to respond (in a reasonably
appropriate manner) immediately to an emergency without first
obtaining such consent. All remediation shall be
performed in strict compliance with Laws and to the reasonable
satisfaction of Landlord. Tenant shall not enter into
any settlement agreement, consent decree or other compromise with
respect to any claims relating to any Hazardous Materials in any
way connected to the Premises without first obtaining
Landlord’s written consent (which consent may be given or
withheld in Landlord’s sole, but reasonable, discretion) and
affording Landlord the reasonable opportunity to participate in any
such proceedings. As used herein, the term, “
Hazardous
Materials ,” shall mean any waste, material or
substance (whether in the form of liquids, solids or gases, and
whether or not airborne) that is or may be deemed to be or include
a pesticide, petroleum,
asbestos,
polychlorinated biphenyl, radioactive material, urea
formaldehyde or any other pollutant or contaminant that is or
may be deemed to be hazardous, toxic, ignitable, reactive,
corrosive, dangerous, harmful or injurious, or that presents a
risk to public health or to the environment, and that is or
becomes regulated by any Law. The undertakings,
covenants and obligations imposed on Tenant under this
Section
9.2 shall survive the termination or expiration of this
Lease. Landlord
acknowledges and agrees that, as part of the Tenant
Improvements, Tenant will be installing an ammonia-based
refrigeration system into the Premises (the “
Refrigeration
System ”)
and, as long as the
Refrigeration System complies with any and all applicable
governmental rules and regulations and the terms of
this Section 9.2
, the presence of the
Refrigeration System at the Premises shall not be an Event of
Default (hereinafter defined) by Tenant . Notwithstanding anything to the
contrary contained herein, the Tenant shall be solely
responsible for causing the Refrigeration System to comply
with any and all applicable governmental rules and regulations
and the terms of this Section 9.2
.
10.
INSURANCE
.
10.1.
Insurance
to be Maintained by Landlord . Landlord shall
maintain: (a) a commercial property insurance policy
covering the Premises (at its full replacement cost), but excluding
Tenant’s personal property; (b) commercial general public
liability insurance covering Landlord for claims arising out of
liability for bodily injury, death, personal injury, advertising
injury and property damage occurring in and about the Premises and
otherwise resulting from any acts and operations of Landlord, its
agents and employees; (c) rent loss insurance; and (d) any other
insurance coverage deemed appropriate by Landlord or required by
Landlord’s lender. All of the coverages described
in (a) through (d) shall be determined from time to time by
Landlord, in its sole discretion. All insurance
maintained by Landlord shall be in addition to and not in lieu of
the insurance required to be maintained by the Tenant.
10.2.
Insurance
to be Maintained by Tenant . Tenant shall
purchase, at its own expense, and keep in force at all times from
and after the date of this Lease, the policies of insurance set
forth below (collectively, “ Tenant’s Policies
”). All Tenant’s Policies shall (a) be
issued by an insurance company with a Best’s rating of A or
better and otherwise reasonably acceptable to Landlord and shall be
licensed to do business in the state in which the Premises is
located; (b) provide that said insurance shall not be canceled or
materially modified unless 30 days’ prior written notice
shall have been given to Landlord; (c) provide for deductible
amounts that are reasonably acceptable to Landlord (and its lender,
if applicable) and (d) otherwise be in such form, and include such
coverages, as Landlord may reasonably require.
The Tenant’s Policies described
in (i) and (ii) below shall (1 ) provide coverage on an occurrence basis; (2)
name Landlord (and its lender, if applicable) as an additional
insured; (3) provide coverage, to the extent insurable, for the
indemnity obligations of Tenant under this Lease; (
4 ) contain a separation of insured parties
provision; ( 5
) be primary, not contributing with,
and not in excess of, coverage that Landlord may carry; and
( 6 ) provide coverage with no exclusion for a
pollution incident arising from a hostile fire. All
Tenant’s Policies (or, at Landlord’s option,
Certificates of Insurance and applicable endorsements, including,
without limitation, an "Additional
Insured-Managers or Landlords of Premises" endorsement) shall be
delivered to Landlord prior to the Commencement Date and renewals
thereof shall be delivered to Landlord’s notice addresses at
least 30 days prior to the applicable expiration date of each
Tenant’s Policy. In the event that Tenant fails,
at any time or from time to time, to comply with the requirements
of the preceding sentence and such failure continues for five (5)
days after written notice from Landlord, Landlord may
(i) order such insurance and charge the cost thereof to Tenant,
which amount shall be payable by Tenant to Landlord upon demand, as
Additional Rent or (ii) impose on Tenant, as Additional Rent, a
monthly delinquency fee, for each month during which Tenant fails
to comply with the foregoing obligation, in an amount equal to five
percent (5%) of the monthly Base Rent then in
effect. Tenant shall give prompt notice to Landlord and
Agent of any bodily injury, death, personal injury, advertising
injury or property damage occurring in and about the
Premises.
Tenant shall purchase and maintain, throughout the Term, a
Tenant’s Policy(ies) of (i) commercial general or excess
liability insurance, including personal injury and property damage,
in the amount of not less than $2,000,000.00 per occurrence, and
$5,000,000.00 annual general aggregate, per location (such limits
may be provided through a combination or primary and excess
policies); (ii) comprehensive automobile liability insurance
covering Tenant against any personal injuries or deaths of persons
and property damage based upon or arising out of the ownership,
use, occupancy or maintenance of a motor vehicle at the Premises
and all areas appurtenant thereto in the amount of not less than
$1,000,000, combined single limit; (iii) commercial property
insurance covering Tenant’s personal property ; and (iv) workers’ compensation insurance
per the applicable state statutes covering all employees of
Tenant.
10.3.
Waiver
of Subrogation .
Notwithstanding anything to the
contrary in this Lease, Landlord and Tenant mutually waive their
respective rights of recovery against each other and each
other’s officers, directors, constituent partners, members,
agents and employees, and (to
the extent such parties waive their rights of subrogation against
Tenant) Tenant further waives
such rights against (a) each lessor under any ground or underlying
lease encumbering the Premises and (b) each lender under any
mortgage or deed of trust or other lien encumbering the Premises
(or any portion thereof or interest therein), to the extent any
loss
is insured against or required to be insured against under this
Lease, including, but not limited to, losses, deductibles or
self-insured retentions covered by Landlord’s or
Tenant’s commercial property, general liability, automobile
liability or workers’ compensation policies described
above, This provision is intended to waive, fully and
for the benefit of each party to this Lease, any and all rights and
claims that might give rise to a right of subrogation by any
insurance carrier. Each party shall cause its respective
insurance policy(ies) to be endorsed to evidence compliance with
such waiver.
11.
ALTERATIONS
. Tenant may, from time to time, at its expense, make
alterations or improvements in and to the Premises (hereinafter
collectively referred to as “ Alterations ”;
provided that this term shall not apply to the Tenant Improvements,
which are governed by other provisions), provided that Tenant first
obtains the written consent of Landlord, which shall not be
unreasonably withheld, delayed or conditioned. All of the following
shall apply with respect to all Alterations: (a) the
Alterations are non-structural and the structural integrity of the
Premises shall not be affected; (b) the proper functioning of the
mechanical, electrical, heating, ventilating, air-conditioning
(“ HVAC ”), sanitary
and other service systems of the Premises shall not be adversely
affected; and (c) Tenant shall have appropriate insurance coverage,
reasonably satisfactory to Landlord, regarding the performance and
installation of the Alterations. Additionally, before
proceeding with any Alterations, Tenant shall (i) at Tenant’s
expense, obtain all necessary governmental permits and certificates
for the commencement and prosecution of Alterations; (ii) if
Landlord’s consent is required for the planned Alteration,
submit to Landlord, for its written approval, working drawings,
plans and specifications and all permits for the work to be done
and Tenant shall not proceed with such Alterations until it has
received Landlord’s approval (if required), , which shall not
be unreasonably withheld, delayed or conditioned, and which shall
be given or declined within ten (10) business days. If
Landlord declined to give its consent Landlord shall provide the
reasons with reasonably specificity, and Tenant may resubmit a
request for approval which addresses such reasons, which shall
again but subject to the above-referenced 10-day provision; and
(iii) cause any contractors or others engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a
form reasonably acceptable to Landlord) evidencing policies of
commercial general liability insurance (providing the same
coverages as required in Section 10 above) and
workers’ compensation insurance. Such insurance
policies shall satisfy the obligations imposed under Section 10
. Tenant shall cause the Alterations to be performed in
compliance with all applicable permits, Laws and requirements of
public authorities, and any other reasonably restrictions that
Landlord may impose on the Alterations. Tenant shall
cause the Alterations to be diligently performed in a good and
workmanlike manner, using new materials and equipment at least
equal in quality and class to the standards for the Premises
established by Landlord. With respect to any and all
Alterations for which Landlord’s consent is required, Tenant
shall provide Landlord with “as built” plans, copies of
all construction contracts, governmental permits and certificates
and proof of payment for all labor and materials, including,
without limitation, copies of paid invoices and final lien
waivers. If Landlord’s consent to any Alterations
is required, and Landlord provides that consent, then at the time
Landlord so consents, Landlord shall also advise Tenant whether or
not Landlord shall require that Tenant remove such Alterations at
the expiration or termination of this
Lease.
12.
LANDLORD’S
AND TENANT’S PROPERTY . All fixtures,
machinery, equipment, improvements and appurtenances built into the
Premises at the commencement of, or during the Term, whether or not
placed there by or at the expense of Tenant, shall become and
remain a part of the Premises; shall be deemed the property of
Landlord (the “ Landlord’s
Property ”), without compensation or credit to Tenant;
and shall not be removed by Tenant at the Expiration Date unless
Landlord requires their removal (including, but not limited to,
Alterations pursuant to Section 10.3
). Further, any personal property in the Premises on the
Commencement Date, movable or otherwise, unless installed and paid
for by Tenant, shall also constitute Landlord’s Property and
shall not be removed by Tenant. Notwithstanding the
foregoing, the Tenant Improvements shall not constitute
Landlord’s Property. In no event shall Tenant
remove any of the following materials or equipment without
Landlord’s prior written consent (which consent may be given
or withheld in Landlord’s sole discretion): any
power wiring or power panels, lighting or lighting fixtures, wall
or window coverings, carpets or other floor coverings, heaters, air
conditioners or any other HVAC equipment, fencing or security
gates, or other similar building operating equipment and
decorations. At or before the Expiration Date, or the date of
any earlier termination, Tenant, at its expense, shall remove from
the Premises all of Tenant’s personal property and any
Alterations that Landlord requires be removed pursuant to
Section
10.3, and Tenant shall repair (to Landlord’s
reasonable satisfaction) any damage to the Premises resulting from
either or both of such installation and removal. Any
other items of Tenant’s personal property that remain in the
Premises after the Expiration Date, or following an earlier
termination date, may, at the option of Landlord, be deemed to have
been abandoned, and in such case, such items may be retained by
Landlord as its property or be disposed of by Landlord, in
Landlord’s sole and absolute discretion and without
accountability, at Tenant’s
expense. Notwithstanding the foregoing, if Tenant is in
default beyond any applicable cure period provided herein and under
the terms of this Lease, Tenant may remove Tenant’s personal
property from the Premises only upon the express written direction
of Landlord. The foregoing sentence shall not apply to
Tenant’s inventory.
13.
REPAIRS
AND MAINTENANCE .
13.1.
Tenant
Responsibilities . Tenant acknowledges that, with
full awareness of its obligations under this Lease, Tenant has
accepted the condition, state of repair and appearance of the
Premises. Except for events of damage, destruction or
casualty to the Premises (as addressed in Section 18 below), Tenant
agrees that, at its sole expense, it shall put, keep and maintain
the Premises, including any Alterations and any altered, rebuilt,
additional or substituted buildings, structures and other
improvements thereto or thereon, in a good and safe condition,
repair and appearance (collectively, the “ Required Condition
”) and shall make all repairs and replacements necessary
therefore. Without limiting the foregoing, Tenant shall
promptly make all structural and nonstructural, foreseen and
unforeseen, ordinary and extraordinary changes, replacements and
repairs of every kind and nature, and correct any patent or latent
defects in the Premises, which may be required to put, keep and
maintain the Premises in the Required Condition. Tenant
will keep the Premises orderly and free and clear of
rubbish. Tenant covenants to perform or observe all
terms, covenants and conditions of any easement, restriction,
covenant, declaration or maintenance agreement (collectively,
“ Easements ”) to
which the Premises are currently subject or become subject pursuant
to this Lease, whether or not such performance is required of
Landlord under such Easements, including, without limitation,
payment of all amounts due from Landlord or Tenant (whether as
assessments, service fees or other charges) under such
Easements. Each party shall deliver to the other party
promptly, but in no event later than five (5) business days after
receipt thereof, copies of all written notices received from any
party thereto regarding the non-compliance of the Premises or
Landlord’s or Tenant’s performance of obligations under
any Easements. Tenant shall, at its expenses, use
reasonable efforts to enforce compliance with any Easements
benefiting the Premises by any other person or entity or property
subject to such Easement. Landlord shall
not be required to maintain, repair or rebuild, or to make any
alterations, replacements or renewals of any nature to the
Premises, or any part thereof, whether ordinary or extraordinary,
structural or nonstructural, foreseen or not foreseen, or to
maintain the Premises or any part thereof in any way or to correct
any patent or latent defect therein. Tenant hereby
expressly waives any right to make repairs at the expense of
Landlord which may be provided for in any Law in effect at the
Effective Date of the Lease or that may thereafter be
enacted. If Tenant shall vacate or abandon the Premises,
it shall give Landlord immediate written notice thereof.
Notwithstanding anything to the contrary contained herein, Landlord
shall be responsible for the lawn care and landscaping and Tenant
shall be solely responsible, at Tenant’s sole cost, for snow
removal at the Premises and maintenance of the fire maintenance
systems of the Premises.
13.2.
HVAC
Maintenance Contract . Tenant shall also
maintain, in full force and effect, a preventative maintenance and
service contract with a reputable service provider for maintenance
of any of the HVAC systems of the Premises (the “
HVAC Maintenance
Contract ”). The terms and provisions of
any such HVAC Maintenance Contract shall require that the service
provider maintain the Premises’ HVAC system in accordance
with the manufacturer’s recommendations and otherwise in
accordance with normal, customary and reasonable practices in the
geographic area in which the Premises is located and for HVAC
systems comparable to the Premises’ HVAC system. Within
30 days following the Commencement Date, Tenant shall procure and
deliver to Landlord the HVAC Maintenance Contract for any HVAC
systems currently existing. In the event Tenant installs any
additional HVAC systems at the Premises, Tenant shall obtain a HVAC
Maintenance Contract for such HVAC systems. Thereafter,
Tenant shall provide to Landlord a copy of renewals or replacements
of such HVAC Maintenance Contract no later than 30 days prior to
the then-applicable expiry date of the existing HVAC Maintenance
Contract. If Tenant fails to timely deliver to Landlord
the HVAC Maintenance Contract (or any applicable renewal or
replacement thereof), then Landlord shall have the right to
contract directly for the periodic maintenance of the HVAC systems
in the Premises and to charge the cost thereof back to Tenant as
Additional Rent.
14.
UTILITIES
. Tenant shall purchase all utility services and shall
provide for scavenger, cleaning and extermination
services. Tenant shall pay the utility charges for the
Premises directly to the utility or municipality providing such
service, all charges shall be paid by Tenant before they become
delinquent. Tenant shall be solely responsible for the
repair and maintenance of any meters necessary in connection with
such services. Tenant’s use of electrical energy
in the Premises shall not, at any time, exceed the capacity of
either or both of (x) any of the electrical conductors and
equipment in or otherwise servicing the Premises; and (y) the HVAC
systems of the Premises.
15.
INVOLUNTARY
CESSATION OF SERVICES . Landlord reserves the
right, without any liability to Tenant and without affecting
Tenant’s covenants and obligations hereunder, to stop service
of any or all of the HVAC, electric, sanitary, elevator (if any),
and other systems serving the Premises, or to stop any other
services required by Landlord under this Lease, whenever and for so
long as may be necessary by reason of (i) accidents, emergencies,
strikes, or (ii) any other cause beyond Landlord’s reasonable
control , if and only if all of such
stoppages are believed to be, in Landlord’s discretion,
absolutely necessary to effect any repairs to the Premises
or if Landlord is requested or
required by any governmental or quasi-governmental authority to
stop such services . Further, it is also
understood and agreed that Landlord or Agent shall have no
liability or responsibility for a cessation of services to the
Premises that occurs as a result of causes beyond Landlord’s
or Agent’s reasonable control. No such
interruption of service shall be deemed an eviction or disturbance
of Tenant’s use and possession of the Premises or any part
thereof, or render Landlord or Agent liable to Tenant for damages,
or relieve Tenant from performance of Tenant’s obligations
under this Lease, including, but not limited to, the obligation to
pay Rent; provided, however, that if any interruption of services
persists for a period in excess of five (5) consecutive business
days Tenant shall, as Tenant’s sole remedy, be entitled to a
proportionate abatement of Rent to the extent, if any, of any
actual loss of use of the Premises by Tenant.
16.
LANDLORD’S
RIGHTS . Landlord, Agent and their respective
agents, employees and representatives shall have the right to enter
and/or pass through the Premises at any time or times upon
reasonable prior notice (except in the event of emergency) to
examine and inspect the Premises and to show them to actual and
prospective lenders, prospective purchasers or mortgagees of the
Premises or providers of capital to Landlord and its affiliates;
and in connection with the foregoing, to install a sign at or on
the Premises to advertise the Premises for lease or sale; during
the period of six months prior to the Expiration Date (or at any
time, if Tenant has vacated or abandoned the Premises or is
otherwise in default under this Lease), Landlord and its agents may
exhibit the Premises to prospective
tenants. Additionally, Landlord and Agent shall have the
following rights with respect to the Premises, exercisable without
notice to Tenant, without liability to Tenant, and without being
deemed an eviction or disturbance of Tenant’s use or
possession of the Premises or giving rise to any claim for setoff
or abatement of Rent: (i) to have pass keys, access
cards, or both, to the Premises; and (ii) to decorate, remodel,
repair, alter or otherwise prepare the Premises for reoccupancy at
any time after Tenant vacates or abandons the Premises for more
than 30 consecutive days or without notice to Landlord of
Tenant’s intention to reoccupy the Premises.
17.
NON-LIABILITY
AND INDEMNIFICATION .
17.1.
Non-Liability
. None of Landlord, Agent, any other managing agent, or
their respective affiliates, owners, partners, directors, officers,
agents and employees shall be liable to Tenant for any loss,
injury, or damage, to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or
loss; provided, however, that the preceding limitation shall not be
construed to limit or negate Landlord’s obligations under
Section
17.3 below. In the event that Landlord’s
indemnity under Section 17.3 is
applicable, it shall apply only as and to the specific extent
expressly provided in Section 17.3
. Further, none of Landlord, Agent, any other managing
agent, or their respective affiliates, owners, partners, directors,
officers, agents and employees shall be liable to Tenant (a) for
any damage caused by other persons in, upon or about the Premises,
or caused by operations in construction of any public or
quasi-public work; (b) for consequential or indirect damages,
including those purportedly arising out of any loss of use of the
Premises or any equipment or facilities therein by Tenant or any
person claiming through or under Tenant; (c) for any defect in the
Premises; or (d) for injury or damage to person or property caused
by fire, or theft, or resulting from the operation of heating or
air conditioning or lighting apparatus, or from falling plaster, or
from steam, gas, electricity, water, rain, snow, ice, or dampness,
that may leak or flow from any part of the Premises, or from the
pipes, appliances or plumbing work of the same.
17.2.
Tenant
Indemnification . Except in the event of, and to
the extent of, Landlord’s negligence, sole negligence or
willful misconduct, Tenant hereby indemnifies, defends, and holds
Landlord, Agent, Landlord’s members and their respective
affiliates, owners, partners, members, directors, officers, agents
and employees (collectively, “ Landlord Indemnified
Parties ”) harmless from and against any and all
Losses (defined below) arising from or in connection with any or
all of: (a) the conduct or management of the Premises or
any business therein, or any work or Alterations done, or any
condition created by any or all of Tenant and Tenant Parties in or
about the Premises during the Term or during the period of time, if
any, prior to the Commencement Date that Tenant has possession of,
or is given access to the Premises; (b) any act, omission or
negligence of any or all of Tenant and Tenant Parties; (c) any
accident, injury or damage whatsoever occurring in, at or upon the
Premises and caused by any or all of Tenant and Tenant Parties; (d)
any breach by Tenant of any or all of its warranties,
representations and covenants under this Lease; (e) any actions
necessary to protect Landlord’s interest under this Lease in
a bankruptcy proceeding or other proceeding initiated by or against
Tenant under the Bankruptcy Code; (f) the creation or existence of
any Hazardous Materials in, at, on or under the Premises, if and to
the extent brought to the Premises or caused by Tenant or any party
within Tenant’s control; and (g) any violation or alleged
violation by any or all of Tenant and Tenant Parties of any Law
(collectively, “ Tenant’s Indemnified
Matters ”). In case any action or
proceeding is brought against any or all of Landlord and the
Landlord Indemnified Parties by reason of any of Tenant’s
Indemnified Matters, Tenant, upon notice from any or all of
Landlord, Agent or any Superior Party (defined below), shall resist
and defend such action or proceeding by counsel reasonably
satisfactory to Landlord. The term “ Losses ” shall
mean all claims, demands, expenses, actions, judgments, damages
(actual, but not consequential), penalties, fines, liabilities,
losses of every kind and nature, suits, administrative proceedings,
costs and fees, including, without limitation, attorneys’ and
consultants’ reasonable fees and expenses, and the costs of
cleanup, remediation, removal and restoration, that are in any way
related to any matter covered by the foregoing
indemnity. The provisions of this Section 17.2 shall
survive the expiration or termination of this Lease.
17.3.
Landlord
Indemnification . Landlord hereby indemnifies,
defends and holds Tenant harmless from and against any and all
Losses actually suffered or incurred by Tenant as the sole and
direct result of any negligent, willful or intentional acts or
omissions of any or all of Landlord, Agent and any parties within
the direct and sole control of either or both of Landlord and
Agent. Notwithstanding anything to the contrary set
forth in this Lease, however, in all events and under all
circumstances, the liability of Landlord to Tenant, whether under
this Section
17.3 or any other provision of this Lease, shall be limited
to the interest of Landlord in the Premises, and Tenant agrees to
look solely to Landlord’s interest in the Premises for the
recovery of any judgment or award against Landlord, it
be
